Executive Summary: Key Legal and Evidentiary Issues

• Leave to appeal was sought from an interlocutory Superior Court order enjoining Olimag from manufacturing, selling, or distributing asbestos-containing sand products.
   
• Central to the dispute is whether the ASTM D7521 testing protocol favoured by the federal Minister of Environment, Climate Change and Nature (MECCN) reliably measures asbestos content, or whether the IRSST 244 protocol proposed by Olimag is more appropriate.
   
• Interpretation of section 6(2) of the Prohibition of Asbestos and Products Containing Asbestos Regulations was disputed, particularly whether it bars any trace of asbestos or only quantities above a de minimis threshold.
   
• A novel question arose as to whether the criteria for a statutory ministerial injunction under section 311 of the Canadian Environmental Protection Act, 1999 (CEPA) are governed by the general interlocutory injunction test under article 511 of the Code of Civil Procedure (C.C.P.).
   
• Because the underlying injunction was at least partly mandatory in nature, the applicable standard of proof — a strong prima facie case versus mere apparent right — was also contested.
   
• Two related but analytically distinct applications were before the Court: leave to appeal the interlocutory injunction, and a stay of its provisional execution pending appeal.
   

Facts of the case

Les Sables Olimag inc. and its officer, Claude Gosselin, have since 1986 processed asbestos mine tailings through a patented calcination process, incorporating the material into sand products marketed for uses such as golf course sand traps, tennis courts, pétanque courts, beach volleyball courts, and synthetic turf surfaces. Using the ASTM D7521 testing protocol, representatives of the MECCN determined that certain Olimag products contain asbestos residue. The MECCN indicated it would allow Olimag to continue marketing its products only if they first passed the ASTM D7521 test. Olimag disputed the reliability of that protocol, arguing it produces false positives or significantly overstates asbestos content, and proposed the IRSST 244 protocol as more appropriate. On June 12, 2026, the Superior Court (Bonsaint, J.) granted the Attorney General of Canada's motion for an interlocutory injunction, ordering Olimag to immediately cease manufacturing unauthorized asbestos-containing products and to suspend sale, marketing, or distribution of products made from asbestos mine tailings, until certain conditions — including successful testing under the ASTM D7521 protocol — were met. Olimag and Gosselin then sought leave to appeal that order and asked the Court of Appeal to stay its provisional execution pending the appeal.

Policy and legislative provisions at issue

The case turns on section 311(1) of the CEPA, which allows a court, on the Minister's application, to enjoin a person from an act constituting or directed toward an offence under the Act, or to order an act that may prevent such an offence. The alleged offence was tied to section 6(2) of the Regulations, which prohibits using asbestos mine tailings to manufacture asbestos-containing products. Olimag argued that this prohibition, read together with sections 4 and 5 of the same Regulations — which bar consumer products containing asbestos "in quantity superior to trace amounts" — should not be interpreted as banning any trace of asbestos whatsoever. The Court of Appeal also considered article 511 C.C.P., governing the general test for interlocutory injunctions, article 514 C.C.P., which provides that an injunction remains in force despite an appeal, and articles 660 and 661 C.C.P., governing when provisional execution may be stayed.

Reasoning and analysis

On the leave application, Justice Beaupré applied the test under article 31(2) C.C.P., requiring the applicants to show irreparable or disproportionate harm and that the appeal serves the interests of justice by raising a question meriting the Court's attention with reasonable chances of success. He found irreparable harm satisfied, given the significant impact of the injunction on Olimag's operations, reinforced by the novel and public-interest nature of the underlying legal question. He also identified an apparent weakness in the Superior Court's judgment: since the injunction was at least partly mandatory, the Supreme Court's decision in R. v. Canadian Broadcasting Corp. required a "strong prima facie case" rather than mere apparent right, yet the judge appeared to have applied the less demanding standard. Justice Beaupré further noted that no prior authority had addressed how the section 311 CEPA ministerial injunction criteria interact with article 511 C.C.P., making this a serious question warranting appellate attention. On the stay application, he applied the three-part test from Ostiguy c. Labrecque: apparent weakness in the judgment, significant harm from continued execution, and balance of convenience. The first two criteria were met for reasons already discussed, but on the third, Justice Beaupré found that the balance of convenience favoured the Attorney General. He reasoned that the injunction protects human health and the environment, that MECCN's testing had shown asbestos residue in Olimag's products, and that the precautionary principle — recognized by the Supreme Court in the Spraytech case and embedded in the CEPA — meant that scientific uncertainty over which testing protocol is correct should not be resolved in Olimag's favour at this preliminary stage. The economic harm to Olimag did not outweigh the public interest in maintaining the injunction pending a full hearing on the merits.

Ruling and overall outcome

The Court of Appeal granted the applicants' request for leave to appeal the June 12, 2026 interlocutory injunction, and ordered that the appeal proceed on an expedited basis, with the hearing set for February 12, 2027, and filing deadlines of September 4, 2026 for the appellants' factum and October 30, 2026 for the respondent's. However, the Court dismissed the applicants' request for a stay of the provisional execution of the injunction, meaning the injunction against Olimag's manufacturing, sale, and distribution activities remains in force pending the appeal. Costs were ordered to follow the outcome of the appeal, with no specific monetary amount awarded or determinable at this stage.